Non-Disparagement and Confidentiality Clauses in Severance Agreements: What You Are Actually Agreeing To

The cash in a severance agreement is paid once. The non-disparagement and confidentiality clauses run for the rest of your career, and they are the terms most likely to produce a dispute two years later, when a former colleague asks why you left or a recruiter asks about your old boss. They are also the terms employers draft most aggressively, because they cost nothing to include and the employee is focused on the number.

This article explains what each clause actually prohibits, the carve-outs federal law requires whether or not the document mentions them, the penalty provisions that turn a stray comment into a repayment demand, and the changes worth requesting. It is written for Ohio employees signing private-sector severance or settlement agreements.

What Non-Disparagement Actually Covers

The typical clause says you will not make any statement, written or oral, that disparages, defames, or reflects negatively on the company, its affiliates, officers, directors, employees, products, or services. Read three things. First, the definition: "disparage" is often undefined, which makes any negative statement a potential breach, including true ones. Second, the covered parties: "employees" means every current and former coworker, and "affiliates" can mean dozens of entities. Third, the medium: social media, private messages, and conversations are all included, and the clause usually has no end date.

Truth is not a defense unless the agreement says so. Defamation requires falsity; disparagement clauses do not. A truthful review on a job site describing why you left can be a breach.

What Confidentiality Actually Covers

At minimum, the existence and terms of the agreement, including the amount. Standard exceptions allow disclosure to your spouse, attorney, tax and financial advisors, and as required by law. Broader drafts extend confidentiality to the "circumstances of your separation," any "claims or allegations" you made, and everything you learned about the company during employment. The middle category is the problem: it can mean you cannot tell a future employer, a reference, or a friend why you left, and it can shade into a prohibition on describing conduct that happened to you.

The Carve-Outs the Law Requires

Certain rights cannot be waived by a private agreement, and a clause that appears to waive them is unenforceable to that extent. You retain the right to file a charge with the EEOC, the Ohio Civil Rights Commission, the NLRB, or another government agency, to participate in an agency investigation, and to communicate with the SEC or another regulator about possible violations, including for a whistleblower award. You can testify truthfully under subpoena or court order. Ohio agreements that release claims can lawfully waive your right to recover money from an EEOC charge, but not your right to file one.

Two developments narrowed these clauses further. In 2023, the National Labor Relations Board held in McLaren Macomb that offering a severance agreement with broad non-disparagement and confidentiality provisions to non-supervisory employees violates the National Labor Relations Act, because those employees have a protected right to discuss working conditions. The decision applies to most rank-and-file employees at private employers regardless of union status; it does not protect supervisors and managers. And the federal Speak Out Act of 2022 makes pre-dispute non-disclosure and non-disparagement clauses unenforceable as to sexual harassment and sexual assault allegations; it applies to agreements signed before a dispute arises, such as an employment agreement, and does not reach a severance or settlement agreement signed after the dispute exists. A well-drafted agreement will include a protected-rights paragraph reciting the agency and subpoena carve-outs. If yours does not, ask for one.

The Penalty Language

The teeth of these clauses are in a different section. Look for a provision making non-disparagement or confidentiality a "material term," a clawback allowing the company to recover severance already paid on a breach, liquidated damages in a fixed amount per violation, and a fee-shifting clause requiring you to pay the company's attorney's fees if it sues. Combined, these turn a single comment into a demand for the return of the whole package plus fees. The negotiation targets are a cure period with written notice before any breach claim, a limit on remedies to amounts not yet paid, mutual fee-shifting or none, and deletion of liquidated damages.

What to Negotiate

Mutuality. The company should be bound too, but a corporation cannot control what every employee says, so the workable version binds named individuals: the officers and managers who would be asked about you. Ask for a clause obligating those people not to disparage you and directing HR to confirm dates, title, and eligibility for rehire only.

Statements of fact. A carve-out for truthful statements of fact, and for statements made in response to a direct inquiry about your employment, preserves your ability to answer an interviewer honestly.

A defined scope. Limit the covered parties to the company and its current officers, and limit confidentiality to the terms and amount rather than the circumstances of the separation. If the agreement releases claims about specific conduct, ask that describing that conduct to a therapist, a licensing board, or a prospective employer asking about a gap is expressly permitted.

The reference. A non-disparagement clause without an agreed reference is half a term. Get the script: what the company will say, and who will say it.

Remedies. Notice and cure, no clawback of paid amounts, no liquidated damages, and no one-way fee shifting.

Living With It Afterward

Once signed, treat the clause as real. Do not post about the company. Answer interview questions about why you left with the agreed script or a neutral phrase such as "the role was eliminated" or "we parted ways." Do not discuss the amount. Keep a copy of the signed agreement and the protected-rights paragraph where you can find it. If the company or a former manager breaches a mutual clause, document it and raise it in writing, because a mutual clause is only worth what you are willing to enforce.

The Bottom Line

Non-disparagement and confidentiality clauses are not boilerplate, however they are formatted. They decide what you can say about your last job for the rest of your working life, and the penalty language decides what it costs if you get it wrong. The law keeps you free to talk to agencies, regulators, courts, and, for most non-supervisory employees, coworkers. Everything else is negotiated, and the first draft is written by the company. Ask for mutuality, a scope you can live with, a statements-of-fact carve-out, an agreed reference, and remedies that do not put the whole package at risk.

Frequently Asked Questions

Are non-disparagement clauses enforceable in Ohio?

Yes, as contract terms, subject to the federal carve-outs for agency communications, subpoenas, and, for non-supervisory employees, discussing working conditions. Truth is not a defense unless the agreement includes a statements-of-fact exception.

Can a severance agreement stop me from filing an EEOC charge?

No. You keep the right to file a charge with the EEOC or the Ohio Civil Rights Commission and to participate in an investigation. The agreement can waive your right to recover money from that charge, but not the right to file it.

What did the NLRB decide about severance agreements?

In McLaren Macomb (2023), the Board held that offering non-supervisory employees a severance agreement with broad confidentiality and non-disparagement terms violates the National Labor Relations Act. It does not protect supervisors or managers.

Can I tell a future employer why I left?

It depends on the confidentiality clause. If it covers the circumstances of the separation, a candid answer may be a breach. Ask for an agreed reference script and a carve-out for responding to direct inquiries before you sign.

What happens if I breach a non-disparagement clause?

The agreement decides. Many include clawback of severance paid, liquidated damages, and fee shifting. Negotiate a notice-and-cure period, a limit on remedies to unpaid amounts, and deletion of liquidated damages before signing.